Research note by Jason Marisam
In nearly every area of regulatory law, U.S. agencies today base their regulations in part on international considerations, such as the benefits of harmonizing U.S. and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. For a smattering of examples from the Obama administration, consider the following proposed or final rulemakings:
- The Environmental Protection Agency (EPA) proposed strict limits on greenhouse gas emissions from new coal plants in part because doing so would “demonstrate global leadership” on climate change and signal to China a U.S. commitment to the collaborative development of carbon capture technology.
- The Department of the Treasury and the Federal Reserve Board established capital ratio standards for banks that were “measured in a manner consistent with the international leverage ratio” set by a group of international regulators known as the Basel Committee.
- The Food and Drug Administration has proposed “requiring that dates on medical device labels conform to a standard format consistent with international standards and international practice” in order to streamline U.S. and international medical device labels.
- The Nuclear Regulatory Commission has adopted safety standards that “provide consistency between domestic and international efforts for security of radioactive materials that are deemed to be attractive targets for malevolent use.”
- The Department of Labor has proposed that the labeling of hazardous chemicals in workplaces must “conform with” a recommended classification system set by the United Nations.
The internationalization of agency actions is due, in large part, to the growing number of regulatory issues that demand international cooperation and coordination in our globalized age. In 2012, international cooperation received a boost from President Obama’s landmark Executive Order 13,609, which tasks agencies with considering the “international impacts” of significant rulemakings and pursuing “international regulatory cooperation” when addressing shared regulatory issues. As a result, we can expect this internationalization trend to continue and gain in prominence.
In a recent Article (The Internationalization of Agency Actions, Fordham Law Review), I examined what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. The Article contributes significantly to the global administrative law literature. Global administrative law focuses on the processes, procedures, and substantive outcomes of international regulatory regimes. The subfield was launched because traditional administrative law paradigms in the U.S. were formed with domestic law in mind and could not account for international developments. To the extent that the subfield has focused on the domestic level, it has typically been either to assess how U.S. administrative law can inform international administrative practices or to show how international regulatory regimes affect substantive decision-making by domestic agencies.
The Article engages in an institutional analysis that shows how the causal chain runs in the other direction too—that is, domestic administrative law can affect substantive decision-making at the international level. For example, in several opinions, courts have refused to exercise jurisdiction over some agency decisions that involve the negotiation and implementation of international agreements coordinating foreign and U.S. regulations. One effect of these opinions is to give the executive branch a freer hand to bargain with other nations and not worry that courts will veto the international arrangements. But at the same time these judicial decisions undermine the executive’s bargaining power because they make it harder for the executive to credibly claim that any agreement must align more closely with U.S. values and preferences or risk being overturned in U.S. courts.
The Article also contributes to the international law and international affairs literature on costly signaling theory. This theory explains how, in the midst of international negotiations, state actors behave in ways that send signals of their foreign policy intentions to other nations, which observe the signals and adjust their negotiating positions accordingly. The literature has focused on signals sent through actions by Congress and the President. This Article shows how such signals are now being sent through agency actions. One example comes from the EPA’s proposal to regulate climate change in part because of the “leadership” that it would demonstrate globally.
Finally, the Article contributes incidentally to the federalism literature. Some scholars have argued against the federal preemption of state law on the grounds that preemption blocks policymaking at the state level and thus deprives federal policymakers of a valuable source of information about which policies work best. Without state policy experiments, the argument goes, federal policymakers such as agencies will have a harder time identifying the optimal policy. The Article shows that this argument against preemption has far less purchase in today’s globalized world. U.S. agencies and their foreign counterparts often face similar problems. As a result, when state-level regulations are preempted or otherwise nonexistent, U.S. agencies can still learn by looking to policies enacted overseas.
- J. Marisam (2015), The Internationalization of Agency Actions, Fordham Law Review, Vol. 83, No. 4
Jason Marisam is Assistant Professor at Hamline University School of Law